Geographical Indication (GI) options for Ethiopian Coffee and Ghanaian Cocoa

Chapter 6
The Policy Context for a Commons-Based
Approach to Traditional Knowledge in Kenya
Marisella Ouma
Abstract
This chapter outlines research into the policy context for a commons approach to traditional
knowledge (TK) in Kenya. The TK commons concept on which the research study was premised
addresses protection, preservation, access, terms of use, licensing and benefit-sharing.
The research examined the Constitution of Kenya, the National TK Policy, the Draft TK Bill,
and intellectual property (IP) laws that provide a basis for a legal and policy framework for
a TK commons in Kenya. The research sought to determine the degree to which existing law
and policy in Kenya, along with reform proposals, have the potential to support a commons
approach to TK management. The chapter assesses the degree to which such laws, policies
and proposals might be able to protect the interests of indigenous and local communities
(ILCs) in Kenya who hold TK, while at the same time promoting collaborative, networked
“open development” objectives. The chapter argues that previous initiatives, such as a project
to produce a digital archive documenting Maasai knowledge, have laid the groundwork for
positive initiatives in support of a TK commons. However, a lack of collaboration between
ILCs and Kenyan governmental organisations has left this potential unrealised. The chapter
provides recommendations for, inter alia, how to improve collaboration between government
and ILCs.
1. Introduction
Until recently, formal protection of intellectual property (IP) in African countries
primarily addressed conventional IP – copyright, patents and trademarks.
The emerging emphasis is on enforcement of IP according to minimum standards
that have been set out in international instruments such as the World
Trade Organisation (WTO) Agreement on Trade-Related Aspects of Intellectual